On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans

45 Pages Posted: 28 Feb 2013 Last revised: 31 Mar 2013

See all articles by Robert A. Mikos

Robert A. Mikos

Vanderbilt University - Law School

Date Written: 2012

Abstract

The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been — and cannot be — preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.

Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations. Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge.

Keywords: American federalism, state marijuana policy, U.S. drug policies, Supremacy Clause of the Constitution, legalizing marijuana, medicinal marijuana bans, Gonzales v. Raich, Compassionate Use Act, medical marijuana

JEL Classification: H70, H77

Suggested Citation

Mikos, Robert A., On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans (2012). Policy Analysis, No. 714, December 12, 2012, Vanderbilt Public Law Research Paper No. 13-17, Available at SSRN: https://ssrn.com/abstract=2225945 or http://dx.doi.org/10.2139/ssrn.2225945

Robert A. Mikos (Contact Author)

Vanderbilt University - Law School ( email )

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615-322-6631 (Fax)

HOME PAGE: http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=227

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